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Victorian v. Davis

United States District Court, S.D. Texas, Houston Division

July 13, 2017

Brian Victorian, a/k/a Brian Malvo, Petitioner,
v.
Lorie Davis, Respondent.

          ORDER OF DISMISSAL

          GRAY H. MILLER UNITED STATES DISTRICT JUDGE.

         Petitioner, a state inmate proceeding pro se and requesting leave to proceed in forma pauperis, filed this section 2254 habeas petition challenging his conviction and 45-year sentence for aggravated sexual assault of a child under the age of fourteen. After reviewing the pleadings under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court concludes that this case must be dismissed for the reasons that follow.

         Background and Claims

         Petitioner was convicted of aggravated sexual assault of a child under the age of fourteen in 2013 in Harris County, Texas. The conviction was affirmed on appeal, and discretionary review was refused. The Texas Court of Criminal Appeals denied habeas relief on April 5, 2017.

         Petitioner complains in the instant federal petition that (1) the state courts on collateral review denied him due process by not ordering an affidavit from trial counsel; (2) trial counsel failed to set petitioner's pro se motions for hearing; and (3) trial counsel failed to request a lesser-included offense instruction.

         Habeas Standards

         This petition is governed by the applicable provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U .S.C. § 2254. Under the AEDPA, federal habeas relief cannot be granted on legal issues adjudicated on the merits in state court unless the state adjudication was contrary to clearly established federal law as determined by the Supreme Court, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court. Harrington v. Richter, 562 U.S. 86, 98-99 (2011); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. §§ 2254(d)(1), (2). A state court decision is contrary to federal precedent if it applies a rule that contradicts the governing law set forth by the Supreme Court, or if it confronts a set of facts that are materially indistinguishable from such a decision and arrives at a result different from the Supreme Court's precedent. Early v. Packer, 537 U.S. 3, 7-8 (2002).

         A state court unreasonably applies Supreme Court precedent if it unreasonably applies the correct legal rule to the facts of a particular case, or unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 409. In deciding whether a state court's application was unreasonable, this Court considers whether the application was objectively unreasonable. Id. at 411. “It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Richter, 562 U.S. at 102. As stated by the Supreme Court in Richter,

If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, ” not a substitute for ordinary error correction through appeal.

Id., at 102-03 (emphasis added; internal citations omitted).

         The AEDPA affords deference to a state court's resolution of factual issues. Under 28 U.S.C. § 2254(d)(2), a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it is objectively unreasonable in light of the evidence presented in the state court proceeding. Miller-El v. Cockrell, 537 U.S. 322, 343 (2003). A federal habeas court must presume the underlying factual determination of the state court to be correct, unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 330-31.

         Analysis State Habeas Court Error

         Petitioner complains that the state courts on collateral review denied him due process by failing to order an affidavit from trial counsel. This claim provides petitioner no basis for federal habeas relief. See Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987) (holding that because there is no federal constitutional right to state post-conviction review, irregularities during such a review do not provide a basis for federal habeas relief); see also Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (noting that an attack on a state habeas proceeding does not entitle a petitioner to federal habeas relief, as it is an attack on a proceeding collateral to the conviction and not the conviction itself).

         Petitioner's challenge to the state habeas proceedings fails to state a cognizable federal habeas claim, ...


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